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Hem Chunder Chowdhry Vs. Brojo Soondury Debee - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal89
AppellantHem Chunder Chowdhry
RespondentBrojo Soondury Debee
Cases ReferredM.S. Fuzeelun v. Syud Keramut Hossein
Excerpt:
application in aid of execution - possession--wasilat--limitation act (xv of 1877), schedule ii, article 179, clause 4. - .....the application made on the 28th june 1877, by the judgment-creditor, to receive a certain sum of money deposited by the judgment-debtor, is an application within the meaning of clause 4, article 179 [q.v., supra, 8 cal. 29.] of schedule ii of the limitation act, xv of 1877. but it seems to us, in spite of certain rulings of the madras and allahabad high courts, which have been quoted to the contrary, that we cannot treat an application for money deposited by the judgment-debtor as an application to the court 'to take a step in aid of execution.' in no sense can an application to the court for an order for payment of the money deposited in satisfaction of the decree be said to constitute a step taken by the court 'in aid of the execution.' the money so deposited can be taken out by the.....
Judgment:

Morris, J.

1. It seems to us that there is some difference between this case and the case referred to by the Judge, viz.; Bunsee Singh v. Mirza Nuzuf Ali Bag 22 W.R. 328. In the latter case, the decree was a decree for possession and a direction was given therein that the plaintiff do recover wasilat from the date of suit to the date of recovery of possession. In the present case, the decree was a decree for possession with wasilat from the date of dispossession to the date of suit. It is, therefore, argued that the award of wasilat is part of the decree. Admitting this for the moment, and without going to the length of the decision in the case of M.S. Fuzeelun v. Syud Keramut Hossein 21 W.R. 212 it seems to us, that even on this assumption the judgment of the lower Court must be upheld, and that the application for execution in the shape of determination of mesne profits is barred by limitation. The decree bears date the 10th February 1877, and the first application, which appears to us to be the only application for execution, was made on the 4th April 1877. The application for determination of wasilat was made on the 17th May 1880, which is more than three years from the date of the first application. It has been argued that the application made on the 28th June 1877, by the judgment-creditor, to receive a certain sum of money deposited by the judgment-debtor, is an application within the meaning of Clause 4, Article 179 [q.v., supra, 8 Cal. 29.] of Schedule ii of the Limitation Act, XV of 1877. But it seems to us, in spite of certain rulings of the Madras and Allahabad High Courts, which have been quoted to the contrary, that we cannot treat an application for money deposited by the judgment-debtor as an application to the Court 'to take a step in aid of execution.' In no sense can an application to the Court for an order for payment of the money deposited in satisfaction of the decree be said to constitute a step taken by the Court 'in aid of the execution.' The money so deposited can be taken out by the judgment-creditor years after the date of deposit, and therefore the order of payment by the Court in no way affects the question of execution. The appeal is dismissed with costs.


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